United States v. Alexander , 398 F. App'x 891 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4500
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALICE M. ALEXANDER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:04-cr-00024-REM-1)
Submitted: October 14, 2010 Decided: October 20, 2010
Before MOTZ, KING, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Clarksburg, West Virginia, for Appellant. William J. Ihlenfeld,
II, United States Attorney, Stephen D. Warner, Assistant United
States Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alice M. Alexander appeals her probation revocation
and six month sentence for one count of credit card fraud in
violation of 18 U.S.C. § 1029(a)(2) (2006). After pleading
guilty to the offense, Alexander was placed on probation. After
allegedly violating the terms of that probation, her probation
officer petitioned the district court for the revocation of her
probation. The district court concluded that Alexander had
violated the terms of her probation in four respects and
sentenced her to six months’ imprisonment.
We review a district court’s decision to revoke
probation for abuse of discretion. United States v. Pregent,
190 F.3d 279, 282 (4th Cir. 1999). The district court need only
find a violation of a term of probation by a preponderance of
the evidence. United States v. Bujak, 347 F.3d 607, 609 (6th
Cir. 2003) (holding preponderance of evidence standard applies
to probation violation as well as supervised release
revocation); see also United States v. Copley, 978 F.2d 829, 831
fn. (4th Cir. 1992) (“Supervised release and probation differ
only in that the former follows a prison term and the latter is
in lieu of a prison term.”).
Here, the district court found that Alexander did not
comply with the terms of her probation by: (1) being convicted
of four separate state law offenses (two incidents of
2
shoplifting, illegal disposal of solid waste, and failure to
report an accident); (2) failing to report to her probation
officer; (3) failing to inform her probation officer that she
was arrested or questioned by law enforcement; and (4) failing
to provide her probation officer with requested financial
information. Alexander does not contest on appeal that she was
convicted of violating state laws or that she failed to report
being arrested or questioned by law enforcement. Rather, she
contends that she cannot be convicted of willfully failing to
provide financial information or report to her probation officer
because she suffers from adult Attention Defecit Disorder
(“A.D.D.”).
At the outset, we note that Alexander has waived any
challenge to the district court’s determination that she broke
state laws and failed to inform her probation officer of police
contact. These, standing alone, would be sufficient to form the
basis of the district court’s decision to revoke probation. In
any event, however, Alexander’s claims are belied by the record.
She noted in her testimony at her revocation hearing that often,
she failed to comply not because of any memory or concentration
issue, but rather because she did not have stamps or long
distance telephone service. Based on these representations, we
decline to disturb the district court’s conclusion that
Alexander’s probation should be revoked.
3
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
4